Elmer Bartels v. McDonald Co.

(Modifying Award and Decision of Administrative Law Judge)

Injury No.: 09-077809

Employee: Elmer Bartels

Employer: McDonald Co.

Insurer: Starnet Insurance Company

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

This cause has been submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have reviewed the evidence and briefs, heard oral argument, and considered the whole record. Pursuant to $\S 286.090$ RSMo, the Commission modifies the award and decision of the administrative law judge (ALJ) dated May 2, 2012.

On or about July 7, 2009, employee injured his lower back at work when he slipped on a pile of loose rubble while carrying a concrete chute. Employee proceeded to final hearing of his claims against employer and the Second Injury Fund for the July 7, 2009, work injury.

The ALJ awarded employee reimbursement for past medical expenses ( $\ 52,998.33 ), future medical care, 27 and $3 / 7$ weeks of temporary total disability benefits, 30 % permanent partial disability of the body as a whole referable to the low back, and 15\% enhanced permanent partial disability against the Second Injury Fund.

Employer appealed to the Commission, alleging, among other things, that the ALJ erred in finding employer liable for past medical expenses of $\ 52,998.33, as said finding was based on improperly admitted hearsay evidence regarding past medical bills.

At the February 1, 2012, hearing, counsel for employee offered "Exhibit J," which represents medical bills for which employee seeks reimbursement. Exhibit J consists of subparts J-1 through J-10 (subpart J-4 was not submitted). When Exhibit J was offered, counsel for employer stated, "I would object to the portions of Exhibit J that are not certified as being hearsay and not admissible pursuant to the Workers' Compensation Act." The ALJ responded, "Okay. I am going to admit Exhibit J into evidence and that includes one through ten in its entirety." The ALJ did not note or address ER's objection to Exhibit J in the award.

On appeal, employer pointed out the following defects with each of Exhibit J's individual subparts:

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2008 unless otherwise indicated.

Improve: Elmer Bartels

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J-1 lacks an "Affidavit Concerning Medical Bills." The medical bills are from Plaza Pharmacy and include four 15.00 copayments (60.00 total).

J-2 lacks an "Affidavit Concerning Medical Bills." The medical bills are from Walgreens and include six charges for medications ($54.69 total).

J-3 includes an "Affidavit Concerning Medical Bills" that meets the requirements of § 490.692 RSMo, but the actual exhibit includes unexplained black marker redactions. The redactions appear to be concealing medical bill payment information. The bills are from Cape Neurosurgical Associates, P.C.- Dr. Yingling ($228.00 total).

J-4 Not Submitted

J-5 does include, what purports to be an "Affidavit Concerning Medical Bills." However, the purported affidavit is inappropriate because the number of pages listed is blank, and the billing representative's signature has not been notarized. The bills are from Peters Chiropractic ($812.00 total).

J-6 includes an "Affidavit Concerning Medical Bills" that meets the requirements of § 490.692 RSMo, but the actual exhibit includes unexplained black marker redactions. The redactions appear to be concealing dates of treatment, company code info, description of treatment info, doctor info, facility info, ticket number info, and the amount employee's insurance paid. The exhibit consists of a "Patient Ledger" from Brain & Neurospine Clinic ($9,526.00 total) (Note: These bills were also submitted in part in Exhibit J-10).

J-7 does include, what purports to be an "Affidavit Concerning Medical Bills." However, the purported affidavit is inappropriate because it indicates there are ten pages connected to the exhibit, when the exhibit actually only includes one page of a bill from July 13, 2009. The bills are from Regional Primary Care ($66.00 total).

J-8 does include, what purports to be an "Affidavit Concerning Medical Bills." However, the purported affidavit is inappropriate because it indicates there are two pages connected to the exhibit, when the exhibit actually only includes one page with one bill. The bills are from Southeast Missouri Hospital ($3,049.72 total).

J-9 lacks an "Affidavit Concerning Medical Bills." Also, the bill contains unexplained black marker redactions under payment information. The medical bills are from Dr. Gornet. ($245.00 total).

J-10 lacks an "Affidavit Concerning Medical Bills." The medical bills are from: Southeast Hospital 8-17-09 - 8-19-09 ($37,435.92); Anesthesia

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Associates (\$1,280.00); Dr. Tolentino (\$7,050.00); and Diagnostic Pathology Assoc. (\$241.00) (J-10 total = \$46,006.92).

Section 490.692 RSMo allows for the admissibility of business records or copies reproduced in the ordinary course of business by any process which accurately reproduces the original upon affidavit of custodian.

Section 490.680 RSMo indicates a record is competent if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the ordinary course of business at or near the time of the act.

Of the nine sets of bills contained within employee's Exhibits J-1 through J-10, Exhibits J-3, J-5, J-6, J-7, and J-8 include an "Affidavit Concerning Medical Bills." Employee's Exhibits J-1, J-2, J-9, and J-10 do not include any such affidavit. Therefore, in accordance with $\S 490.680$ RSMo, they would only be admissible upon competent evidence of the custodian or other qualified witness testifying to the document's identity and mode of preparation. No such testimony was offered.

Employee testified that the medical bills contained within Exhibit J were bills he received for his treatment; however, employee is not a witness qualified to testify whether or not the bills were "made in the regular course of business, at or near the time of the act," as is required by $\S 490.680$ RSMo. Employee lacks "sufficient knowledge of the business operation and methods of keeping records of the business to give the records probity." CACH, LLC v. Askew, 358 S.W.3d 58, 64 (Mo. 2012).

We find that Exhibits J-1, J-2, J-9, and J-10 constitute inadmissible hearsay.

As stated above, employee did not produce a qualified witness to testify regarding whether the bills were made in the regular course of business. Therefore, in order to meet the business rule exception to hearsay, the bills must be accompanied by an affidavit that meets the requirements of $\S 490.692$ RSMo. Exhibits J-5, J-7, and J-8 do include, what purport to be, an "Affidavit Concerning Medical Bills." However, the affidavits do not meet the requirements of $\S 490.692$ RSMo because said affidavits either do not list the number of pages included in the exhibit, or list the incorrect number of pages included in the exhibit. In addition, Exhibit J-5's affidavit includes a billing representative's signature that has not been notarized.

We find that Exhibits J-5, J-7, and J-8 constitute inadmissible hearsay.

With respect to Exhibits J-3 and J-6, while their affidavits appear to meet the requirements of $\S 490.692$ RSMo, they both contain unexplained black marker redactions. Employee offered no evidence regarding the contents of the redacted portions. As such, the affidavits cannot be relied upon because there is no evidence the redactions occurred in the regular course of business.

We find that Exhibits J-3 and J-6 constitute inadmissible hearsay.

Employee cites § 536.070 RSMo for the proposition that employee's medical bills were admissible because they appear to have been made in the regular course of business. However, even if we assume that § 536.070 RSMo controls on this evidentiary issue, which we specifically do not find, employee still failed to provide any evidence that the medical bills even "appear to have been made in the regular course of business." As previously stated, employee's testimony on this subject is insufficient.

Based upon the aforementioned, we find that employee failed to introduce any admissible evidence regarding past medical bills. Therefore, we find that employee failed to meet his burden of proving employer's liability for his past medical expenses.

We find employee's Exhibit J inadmissible in its entirety. Therefore, we reverse the ALJ's award of reimbursement for past medical expenses. We affirm the ALJ's award with respect to all other issues.

The award and decision of Administrative Law Judge Maureen Tilley issued May 2, 2012, is attached hereto and incorporated herein to the extent it is not inconsistent with this decision and award.

The Commission further approves and affirms the ALJ's allowance of attorney's fee as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $27^{\text {th }}$ day of March 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

V A C A N T

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: | Elmer Bartels |

Employer: McDonald Co.

Additional Party: Second Injury Fund

Insurer: Starlet Insurance Company

Hearing Date: February 1, 2012 Checked by: MT/kb

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease? July 7, 2009.
5. State location where accident occurred or occupational disease contracted: Cape Girardeau County, Missouri.
6. Was the above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? Yes.
9. Was claim for compensation filed within time required by law? Yes.
10. Was employer insured by above insurer? Yes.

On February 1, 2012,